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11/23/2016

Larry Solum on Eric Segall on Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has a long critical post responding to Eric Segal's post Who is Originalism for? (noted here).  On New Originalists and the interpretation/construction theory, Professor Solum objects:

... [I]t seems quite likely that there are at least some areas of constitutional law where the public meaning of the constitutional text underdetermines legal effect.  Does the existence of a significant set of construction zones imply that originalism is indistinguishable from living constitutionalism [as Professor Segall suggests]?  The answer to this question is obvious: "no."  First, the original meaning is not radically indeterminate--it is moderately underdeterminate at best.  Second, even with respect to those provisions that are underdeterminate, the text rules out some of the possible answers as inconsistent with the original meaning: this is H.L.A. Hart's idea of the "core" and "penumbra."  Third, it is not necessarily the case that originalists will adopt the same approaches to constitutional construction in the zones of underdeterminacy that living constitutionalists use with respect to the whole text: this third point requires that we examine the various forms of living constitutionalism and the options for originalist constitutional construction--a task beyond the scope of a blog post.  Nonetheless, we should observe that originalists will need to adopt a theory of constitutional construction in the zone of underdeterminacy that is consistent with the justification they offer for originalism itself.  For example, if originalism is justified because living constitutionalism undermines the rule of law by creating an unconstrained Supreme Court, then the correlative approach to constitutional construction will not be: "Supreme Court do whatever you want if the text is underdeterminate."  A rule of law approach to constitutional construction might emphasize respect for baseline legal norms and a strong doctrine of stare decisis.  Or one might adopt the "presumption of liberty approach" advocated by my colleague, Randy Barnett.

And on the future of originalism:

Whether originalism has legs is a different question.  I will say this: in the early 80s when I first encountered originalism, the notion that someday Supreme Court Justices would write originalist decisions was patently absurd.  Two weeks ago, I would have said that it was almost impossible that the Supreme Court would have more than one (maybe two if you count Alito) originalist Justice in the next few years--perhaps in decades.  As a practical matter, the originalist project requires originalist Justices on the Supreme Court.  And that depends on the appointments process.  And that depends on politics.  And not just politics, but the accidents of history as well.

But even if it were the case that originalism will never gain the ascendency, that does not entail the conclusion that originalism as a normative constitutional theory is worthless.  Normative theories can have power even in dissent.  My wonderful colleague Michael Seidman's project of making the case for transparent radical constitutional skepticism is unlikely to gain traction on the Supreme Court.  If the appointment of even one originalist Supreme Court Justice was very unlikely, then the appointment of a Justice who says, "The constitution is just a symbol like the flag; I will disregard it when I decide constitutional cases," is more than just a black swan-more like a flock of black swans who can dance the Charleston while they sing Leonard Cohen songs.  But the extreme unlikelihood of the public embrace of radical constitutional skepticism does not make the skeptic's project unimportant.  Questions about what we should do are very important--even when we do what we should not.  Radical perspectives can illuminate and deepen debates that otherwise are shallow.  There is nothing like a radical idea to shake up the echo chamber of received opinion.

SOMEWHAT RELATED:  Also at Legal Theory Blog, from the Legal Theory Lexicon: Vagueness and Ambiguity.  (Very important concepts and no one does them better than Professor Solum).